1

K.V.Reddy
President
All India Prison Officers Association
09849904733 / 09440060055
E - Mail: kvreddydsp@yahoo.com

PRISONS AND HUMAN RIGHTS

INTRODUCTION

This report is based on the proceedings on the workshops on ‘Prisons and Human Rights’
organised at Bhopal by the Commonwealth Human Rights Initiative (CHRI) in collaboration
with the Madhya Pradesh Human Rights Commission (MPHRC). The workshop, conducted
on the 25th and 26th of April 1998, was attended by representatives from the Law Commission
of India, the National Human Rights Commission of India (NHRC), MPHRC, Madhya
Pradesh State Commission for Women, CHRI, retired and serving officers from the prisons
and police departments, ex- prisoners and their family members, members from NGOs,
academicins, bureaucrats, journalists and lawyers.

The main objective of the workshop was to sensitise the administration to human rights
issues; suggest mechanisms to monitor prison conditions effectively and ensure
accountability in respect of violation of human rights; discuss the problems of prison
administration and ways to motivate and develop prison staff.

Inaugurated by Mr. Justice M.N. Venkatachaliah, Chairperson of the National Human Rights
Commission, the workshop was divided into four sessions with two sessions on each day.
The first day’s sessions, presided over by Mr. R.K. Kapoor, former Director, Intelligence
Bureau and Mr. Justice Awasthy, Member MP Human Rights Commission, covered issues
pertaining to the modernisation of prison administration and motivation and development of
prison staff. The second day’s sessions, chaired by Justice Leila Seth, Member, Law
Commission of India, discussed the subject of prisoner’s rights: the need for transparency and
accountability; and monitoring of prison conditions.
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The need for prison reforms has come into focus during the last few decades. The Supreme
Court and the High Courts have commented upon the deplorable conditions prevailing inside
the prisons, resulting in violation of prisoner’s rights. The problem of prison administration
has been examined by numerous expert bodies set up by the Government of India. The most
comprehensive examination was done by the All India Jail reforms Committee of 1980-83,
popularly known as the Mulla Committee. The National and the State Human Rights
Commission have also, in their annual reports, drawn attention to the appalling conditions in
the prisons and urged governments to introduce reforms.

Prisoners’ rights have become an important item in the agenda for prison reforms. This is due
essentially to the recognition of two important principles. Firstly, the prisoner “is no longer
regarded as an object, a ward, or a ‘slave of the state’, who the law would leave at the prison
entrance and who would be condemned to ‘civil death’.”1 It is increasingly been recognised
that a citizen does not cease to be a citizen just because he has become a prisoner. The
Supreme Court has made it very clear in many judgements that except for the fact that the
compulsion to live in a prison entails by its own force the deprivation of certain rights, like
the right to move freely or to practice a profession of ones choice, a prisoner is otherwise
entitled to the basic freedoms guaranteed by the Constitution.2 Secondly, the convicted
persons go to prisons as punishment and not for punishment. 3 Prison sentence has to be
carried out as per court’s orders and no additional punishment can be inflicted by the prison
authorities without sanction. Prison authorities have to be, therefore, accountable for the
manner in which they exercise their custody over persons in their care, specially as regards
their wide discretionary powers.

It is thus the above two themes- ‘prison administration’ and ‘prisoners’ rights’- are brought
under focus in this workshop.

This report summarises the deliberations of the workshop, highlighting the important issues
which emerged during the deliberations and the important recommendations which were
1
Dr. Kurt Neudek, The United Nations in Imprisonment Today and Tomorrow- International Perspectives on
Prisoners’ Rights and Prison Conditions eds., Dirk van Zyl Smit and Frieder Dunkel; Kluwer Law and Taxation
Publishers, Deventer, Netherlands, 1991.
2
Charles Shobraj vs. Superintendent, Tihar Jail, AIR 1978, SC 1514
3
Jon Vagg. Prison System- A Comparative Study of Accountability in England, France, Germany and the
Netherlands, Clarenden Press, Oxford 1994
 3

made during the sessions. The report does not present the deliberations in the chronological
sequence in which they were held but groups them under different thematic heads.
 4

Prisoners’ Rights

The Constitution of India confers a number of fundamental rights upon citizens. The Indian
State is also a signatory to various international instruments of human rights, like the
Universal Declaration of Human Rights which states that: “No one shall be subject to torture
or cruel, inhuman or degrading treatment of punishment”4. Also important is the United
Nations Covenant on Civil and Political Rights which states in part: “All persons deprived of
their liberty shall be treated with humanity and with respect for the inherent dignity of the
human person”5. Therefore, both under national as well as international human rights law, the
state is obliged to uphold and ensure observances of basic human rights.

One of the best tenets of human rights law is that human rights are inalienable and under no
circumstances can any authority take away a person’s basic human rights. The fact that this
tenet is not sometimes made applicable to prisoners is well documented. There are
innumerable judgements of Supreme Court and High Courts, showing how prisoners’ rights
are violated. The judgement highlighted the highly unsatisfactory conditions prevailing inside
the prisons and the failure of the prison authorities to provide an environment which is
conducive to the maintenance of prisoners’ rights, partly rooted in the belief that the prisoners
do not deserve all the rights and the protections that the constitution provides to all citizens.
Besides being morally wrong and legally invalid, this belief does not show adequate
recognition of some basic facts about the prison population.

Out of the total population of 2,26,158 in the country on 1.1.1997. 1,63,092 were undertrials. 6
Thus 72% of the prison population is not even convicted of any crime. Secondly, even those
who are convicts, a large number of them are first time offenders involved in technical or
minor violations of law. Very few are recidivists or hardened criminals.7 Also, as was
observed by the Mulla Committee, a majority of the inmates come from the “underprivileged
sections of the society, as persons with the means and influence generally manage to remain
beyond the reach of law even if they are involved in violation of law.”8

4
Universal Declaration of human Rights, Article 5.
5
United Nations International Covenant on Civil and Political Rights, Article 10
6
Source: Ministry of Home Affairs, Government of India
7
J Guha Roy, Prisons and Society: A Study of the Indian Jail System, Gian Publishing House, New Delhi. 1989
8
Report of the All India Committee on Jail Reforms, 1980-83
 5

It is against the above backdrop that some important rights of the prisoners were discussed in
a paper presented at the workshop by Ms. Marion Macgregor of the Commonwealth Human
Rights Initiative (CHRI).9 The paper provided an outline of some important rights of
prisoners, like the Right to Live with Human Dignity, Right to Punishment as Prescribed by
Law, Right to be Free of Fetters or Handcuffs, Right to Communication and Information,
Right to Counsel, Right to Writ of Habeas Corpus and the Right to Air Grievances.

Besides discussing the legal sources of the rights, the paper made some suggestions which
could prove helpful in ensuring an element of transparency and accountability in prison
administration. Some of the suggestions made in CHRI’s paper will be discussed later in this
report.

Prison Conditions: First Hand

The workshop provided a unique opportunity to ex-prisoners to narrate their experiences, and
to the delegates to share and learn from them about the conditions prevalent behind the prison
walls. The family members of ex-prisoners, who also spoke at the workshop, informed the
delegates about the sufferings and hardships faced by them while coping with the problems of
detention of their close relatives in the prisons. This session constituted a very important part
of the workshop, as the ex-prisoners and their family members gave fairly graphic, vivid and
moving accounts as well as valuable insights into the problems of those held in custody.

The first speaker in this session, Mr.Guddu Koshti, had been in and out of prisons on several
occasions during the last 18 years. He mentioned that he was transferred from prison to
prison throughout the state and once even out of the state to Maharashtra. This, he alleged,
was due to his continued protests against the appalling conditions prevailing inside the
prisons and against the abuse of authority by the prison staff. He spoke of the atmosphere of
repression existing in prisons which discourages the prisoners from voicing their grievances
and complaints against authority. Mr. Koshti said that the extreme ‘third degree’ measures
that he had been subjected to during the eighteen long years had left him far too weak
physically to earn livelihood through labour, and that his long terms in prisons had not
equipped him with vocational skills that would sustain him as a skilled worker. He also
9
Prisoners’ Rights – Need for Transparency and Accountability – CHRI’s paper presented at the Workshop
 6

claimed to be a victim of social stigmatisation which made rehabilitation all the more
difficult.

Mr. Koshti complained that those with money, power and clout are privileged with remission
of sentences, better food, medical care etc. He alleged that often on payment of money to
members of staff, prisoners are given special diet or admitted to hospital even though they do
not have access to these facilities.

Mr. Koshti blamed the MPHRC for its failure to bring about any change in prison conditions
and complained that all his petitions have thus far been ignored.

The second ex-prisoner, Mr. Patel, complained of over crowding as well as of poor medical
facilities. He had suffered due to absence of adequate medical care in the prisons, which
resulted in his losing one eye. He also spoke about the incidence of lunacy resulting from
mental strain in prisons. Mr. Patel alleged that it was local bosses in the prisons having
money or muscle power or political clout, who were invariably given privileged treatment.
The delegates were informed about the compliant system and that prisoners could write to
their relatives or friends or to relevant authorities about their problems. However, the letter
were to be given open to the warder at the weekly parade, thus suggesting a lack of privacy
which could account for the loss of several letters containing complaints of prisoners.

Mr. Patel informed the delegates that the system of monitoring prison conditions was
extremely ineffective. In his experience, visitors, official or non official, hardly ever came
and even if they did, their check was merely routine, while most of their time was spent
chatting with the prison authorities. He also mentioned that there was hardly any legal aid
available to prisoners and that lawyers rarely visited the prisons to give legal advice to the
prisoners.

The next person who spoke was the younger brother of Mr. Patel. He said that he had visited
his brother frequently in the jail during the eight year period. The main problem faced by him
was to avail his visiting rights without bribing prison staff. Although bribes were not openly
asked for, it was an unspoken rule that the visiting time was in direct proportion to the money
that one secretly paid to the warder. One could meet one’s relatives without paying bribes,
but the frequency would be greatly reduced and the time allowed would be very short. In his
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experience, on payment of a bigger amount, one could even go inside and talk to the prisoner
from the visitor and provides little privacy. He also alleged that often the food or some other
items sent to the prisoner did not reach the person. Much of it was either stolen or consumed
by the prison staff.

The last speaker in this section was Mrs. Malati Maurya whose husband was convicted and
sentenced to the life imprisonment. Mrs. Maurya explained her plight as a woman without
financial or social support, while having to support two children and an aging mother-in-law.
She gave instances when she was not allowed to meet her husband and had to pay bribes to
various members of the prison staff. Not only was she shown little sympathy but was also
humiliated at times by the staff. Mrs. Maurya complained that in spite of a number of
petitions on her part to stay the transfer of her husband to another prison, he was moved far
away from their home town, making visits all the more difficult. Mrs. Maurya also cited the
instance when her husband was not let out on leave despite his mother being ill and was
finally only granted leave for the day when she died.

The Problems

The complaints of the ex-prisoners and their relatives need to be highlighted not as cases of
individual suffering but as examples of the general systemic malaise that affects the prison
system, leading to serious human rights violations. The following are some of the important
problems of the prisons and related issues, having a bearing on prisoners’ rights, which were
discussed by the workshop.

Overcrowding

Overcrowding in Indian prisons is seen as the root problem that gives birth to a number of
other problems relating to health care, food, clothing and poor living conditions. Mr. Justice
Venkatachliah, while inaugurating the workshop, referred to this problem. He said that the
prison population of about 2,24,000 in India in relation to the total population of the country
was one of the lowest in the world. He pointed out that while some jails were comparatively
empty, there were others which were overcrowded by about three times the capacity, though
the percentage of overall overcrowding was about 9%. In some of the prisons inspected by
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Justice Venkatachaliah, the problem of overcrowding was so acute that inmates often had to
sleep in shifts of 3-4 hours due to lack of space.

Overcrowding has also begun to affect the attempts of the prison administration to empower
prisoners with skills that would involve them in gainful employment after release. These
attempts come in form of workshops where prisoners are taught carpentry, printing, binding,
doll-making, typing etc. however, due to the pressing need for space, more and more
workshops are being used to house prisoners. In Madhya Pradesh, currently only 16 out of
120 prisons can afford the luxury of maintaining workshops and these are also increasingly
coming under threat due to the increasing problem of overcrowding.

According to Dr. Hira Singh, Consultant, NHRC, optimum population capacity of prisons
needs to be assessed and provisions made accordingly. Thus, no central jail should hold more
than 750 prisoners and no district jail, more than 400. However, it was observed that even
though in some cases as in MP, where more space is being commissioned and larger prisons
are being constructed, the problem of overcrowding persists. According to a study done by
the MP Prison Department, prison population is rising by 6.92% a year. As per expansion
plans of the state government and presuming that all plans are completed, the total capacity of
the prisons in MP would go up to 20,931. Although this seems to be a huge growth in
capacity terms, the extent of overcrowding would still be to the tune of 56.43% by the year
98-99, and by the year 2005-6 it would go up to 151.18%.10

A serious and long term solution to the problem of overcrowding in prisons needs a review of
the functioning of the entire criminal justice system, including the system of arrests,
sentencing policies and notions of crime.

The National Police Commission had pointed out that 60% of all arrests were either
unnecessary or unjustified.11 The police often look upon imprisonment as an easy solution
and use preventive sections of law, like 151 of the Criminal Procedure Code indiscriminately.
The liberal use of the power to arrest, while contributing significantly to the problem of
overcrowding, leads to increased expenditure on jails. One way to deal with the problem of

10
Source: Prison Headquarters, Madhya Pradesh.
11
The National Police Commission: The Third Report, Chapter XXII, 1980
 9

overcrowding is to decriminalise certain offences and find alternatives to imprisonment,

particularly in petty offences and make minor offences compoundable.

Delay in completing cases is responsible for overcrowding in jails. An important factor

responsible for delaying trials is the failure of the agencies to provide security escort to the
undertrials to the courts on the dates of trial hearings. The prison department blames the
police for failing to provide adequate escort when required. The police, however, have their
own problems and cite law and order requirements and security duties for VIPs as having
overriding priority in deciding deployment of manpower. The only solution tot he problem is
for the State Government to provide trained manpower exclusively for prison department’s
requirement of escorting prisoners. It was suggested that the armed police sanctioned for this
purpose should always be kept at the disposal of the prison department.

Prisons are also being used as multipurpose institutions, to house not only those convicted of
crimes but also those who do not need incarceration but medical and psychiatric treatment.
Although there are many judgements of the higher courts denouncing the use of prisons as
homes for the mentally ill, the practice continues to exist at some places.

Undertrials and Legal Aid

Some important issues about providing legal aid to the needy and poor were discussed in a
paper presented by Mr. N.K. Jain, Member Secretary, State Legal Service, Madhya Pradesh.
Mr. Jain mentioned that legal aid was a fundamental right of an indigent person in the USA
and in UK. In India also, the State is obliged to provide legal aid to the poor, as the Indian
Constitution makes it one of the Directive Principles of the State Policy to do so. However, as
70% of the prison population is illiterate, lacking an understanding of their rights, the poor do
not always get the benefit of the provisions of law in this regard.

In addition, though there are panels of lawyers, at least in district courts in Madhya Pradesh,
the panels do not have good and efficient lawyers.

Mr. Jain, in his paper, made some suggestions to speed up the trial process so that the
population of undertrials is reduced. Though Section 309 Cr.P.C. suggests that the trial
proceedings should be held as expeditiously as possible and once the examination of
 10

witnesses has begun, it should be continued on day to day basis till completion of the case,
this does not happen. Mr. Jain suggested that an amendment should be made in the Cr.P.C. to
make it possible for an undertrial prisoner to plead guilty at any stage of the trial. It was
further suggested that the Lok Adalats should deal not only with compoundable cases but also
with cases where the accused pleads guilty. He advocated strongly for the introduction of the
system of plea bargaining by making necessary amendments in laws. It was, however felt by
some delegates that some safeguards would have to be instituted to minimise the scope for
misuse of the plea bargaining system. One could always plea bargain falsely just to avoid
being kept in prison as an undertrial.

Professor B. B. Pande of the Faculty of Law, University of Delhi, informed the workshop
about the work that was done by him and his students in Tihar Jail in the field of legal aid.
Legal Aid consists of four essential components. The first step is to impart legal literacy with
the aim of spreading awareness amongst prisoners about their rights and obligations and
sensitising the prison administration. legal aid must help the prison system in reducing
reforms. The next step is that of litigation, where the legal aid workers take up cases of
prisoners in courts and see that justice is done. It would also be necessary to keep identifying
those who need and deserve legal aid. To make legal aid efficient and easily available,
Professor Pande stressed to need for para-legal staff to work in prisons with both convicts and
undertrials. It was further suggested that there should be greater involvement of Lok Adalats
in criminal cases, which at present is limited. Lastly, constant monitoring of the prison
conditions to identify inadequacies and shortcomings of the prison administration and suggest
changes in law to bring about the desired reforms was discussed as essential to the entire
system of legal aid.

As observed by the Mulla Committee, most prison inmates belong to the economically
backwards classes and this could be ->attribute<- to their inability to arrange for the bail
bond. Legal aid workers need to help such persons in getting them released either on bail or
on personal recognisance. Bail provisions must be interpreted liberally in case of women
prisoners with children, as children suffer the worst kind of neglect when the mother is in
prison.
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Limiting the powers of the police to arrest, applying the principle of ‘bail not jail’ in majority
of cases and releasing persons on personal recognisance and adding to the list of
compoundable offences would help in reducing overcrowding in jails.

Health Care and Medical Facilities

The problems relating to the health of prisoners and lack of adequate medical facilities in
Indian prisons received considerable attention in the workshop. Justice Venkatachaliah
referred to a recent study of custodial deaths in judicial custody done by the National Human
Rights Commission, which revealed that a high percentage of deaths were attributable to the
incidence of tuberculosis amongst prisoners. In recent times, there has also been a disturbing
rise in the percentage of HIV positive inmates. Special and urgent care is required to look
after such cases.

Due to overcrowding, inmates have to live in extremely unhygienic conditions, with little
concern for health or privacy. Often cells built to house one or two persons now
accommodate twice or three times the number. Most toilets are open, denying the prisoner his
basic right to privacy and human dignity, and are also dirty. Water shortage being the rule
than the exception the toilets prove to be the ideal breeding grounds for health hazards and
epidemics.

Justice Leila Seth gave a first hand account of the health facilities available to prisoners,
based on her experience as the chairperson of the enquiry committee set up to investigate the
death of Rajan Pillai in Tihar Jail. Health care of the prisoner should be treated as a special
responsibility of the prison administration as the prisoner, in fact, is handicapped by the
inability to choose the kind of medical treatment required. There is often little provision for
support and succour from family or friends and the prisoner is solely dependent on his
custodians to provide him adequate medical facilities. Quite often the prison authorities do
not take this responsibility as seriously as they should. Medical checks are routine and
complaints of ill-health are not attended to urgently.

Once again the systemic problems come to surface. For example, the sanctioned strength of
doctors and para-medical staff in many prisons is much less than what is required. As Mr.
G.K. Agarwal, Additional Inspector General (Prisons), Madhya Pradesh, informed, the
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Jabalpur Jail in M.P. was sanctioned a strength of three doctors way back in 1956 when the
number of inmates in that prison was only 550 to 600. Though the prison population now is
about 4000, the number of doctors remains the same. Even this limited strength is not always
available as there are invariably a large number of vacancies in the posts of doctors in most
prisons. Justice Leila Seth observed that even in a high profile jail like Tihar, in 1995, out of
the seventeen sanctioned posts of medical officers, only six were occupied. Of these six, two
were always on leave. Therefore, for a prison population of 9000 inmates, only four medical
officers were available, of which 3 worked during the day and one at night.

Non-availability of adequate medical facilities for prisoners is largely due to the lack of full
time doctors as well as lack of basic infrastructure, like well equipped ambulances, stretchers,
dispensaries, hospital beds etc. sometimes, the prisoner may need expert and urgent medical
attention which is not available within the jail premises. Transporting the sick prisoner out in
the absence of vehicles and escort in districts sometimes poses a problem. For example, Mr.
J.M. Bhagat, Member, Madhya Pradesh Human Rights Commission, narrated the instance of
a prisoner in the Rewa jail, who lost an eye because the cataract could not be diagnosed and
attended to in time. Sometimes, when the cells are closed, the warder who has the keys to the
cells is not available, as a result of which quick medical aid is not possible in case of an
emergency. Justice Seth quoted an instance where the doctor was required to administer
injections through the bars as they could not have the cell opened. Thus in many cases,
besides lack of resources, it is the existence of a dehumanised system in the prison which
contributes to the problem. It is, therefore, important to humanise the relationship between
the prisoner and the prison staff so that the latter are sensitised to the needs of the prisoners
and regard themselves as the caretakers of the inmates.

The Mulaizha, which is the first medical examination of the individual when he is admitted to
the prison, is generally regarded as a mere routine and done perfunctorily. Justice Seth
suggested that the Mulaizha should be detailed and thorough, involving check up of all
known and unknown ailments. This is essential as the majority of the prisoners who come
from economically disadvantaged backgrounds rarely have complete knowledge of their
ailments. Justice Venkatachaliah, in his inaugural address, informed the workshop that the
NHRC was evolving a comprehensive format for the initial medical examination of the
prisoners.
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Drug addiction is on the increase in prisons and in many cases leads to other diseases, such as
AIDS and Tuberculosis. The nexus between drugs and crime is getting stronger day by day.
Mr. Sankar Sen, Director General (Investigations), National Human Rights Commission, said
that there was evidence that large drug gangs recruited inmates from prisons to increase the
use of drugs. There exist, according to Dr. Hira Singh, 30,000 drug addicts in Indian jails.
The rise in incidence of drug abuse could be related to the rise in corruption and the easy
access that miscreants outside may have to inmates. A careful monitoring is needed
alongwith adequately equipped drug de-addiction centres. Justice Seth spoke about
Aashiyana, a drug de-addiction centre in Tihar Jail. However Aashiyana too has started
facing the problem of overcrowding. There is, therefore, an urgent need to get as much aid as
possible from civil society and NGOs. NGOs should be encouraged to work inside the
prisons and their efforts should be supported and supplemented by those of prison
administration.

Besides suffering from physical ailments, the prisoner also undergoes considerable stress and
trauma during his stay in prison. Imprisonment is often accompanied with depression and a
feeling of isolation and neglect. It was therefore felt that active counselling must be made
available to the prisoners to overcome these problems. Counselling should aim not merely at
providing temporary relief by pulling them out of their depression, but at instilling hope and a
sense of purpose in them and by equipping them with skills that may prove useful upon
release.

Justice Seth suggested the need for a thorough overhauling of the arrangements in prisons to
provide medical care and facilities. Most prisons are not equipped with an effective
communication system that would inform the concerned authorities in case of a medical
emergency. Besides establishing such a system, inmates must be thoroughly briefed about
how to seek medical aid in case of emergency.

Women Prisoners

The workshop discussed the need to sensitise the prison administration to gender issues and
specific needs of women prisoners. Mr. Bhagat informed the workshop that during inspection
of several jails, it was found by the M.P.H.R.C. that a large number of women prisoners were
detained in jails as undertrials for a long time. Women, due to their ignorance, are not even
 14

getting the benefit of proviso to Section 437 Cr.P.C, according to which they can be released
on bail even in non-bailable cases. The Commission has now insisted on the prison
authorities to take up the cases of women undertrials with courts so that they can be released
on bail.

Little has been done to attend to the special needs of women inside the prisons. To give one
example, the Mulla Committee report of 1983 had recommended that “at every prison where
there is a sufficiently large number of women prisoners, (say, 25 or above), a full time lady
officer should be appointed. At other prisons arrangement should be made for part time lady
medical officers.”12 There are 120 prisons in Madhya Pradesh and none of them has provided
for a lady doctor for women prisoners, leave alone providing extra medical facilities to
pregnant women.13 Justice Seth suggested that women should be allowed to return to their
families for delivery, as that time they need special support and care which they cannot get in
prisons.

Then there is the problem of rehabilitation. Women suffer from a low social and economic
status within their own families and find it harder to get back into society upon release than
men. It was suggested that such destitute women should be equipped with vocational skills
and protective homes to be established to provide shelter to them after release.

Mr. J.M. Bhagat mentioned in his paper14 that a majority of women detained in safe custody
are not the standard criminal offenders but those who have escaped from a repressive
environment of their homes, brothels or criminal gangs. He suggested that female prisoners
should be imparted prison education and training programmes, irrespective of their status as
convicts or undertrials, to enable them to face the world after release.

Classification of Prisoners

The rationale behind the existing system of classification of prisoners came up for discussion
in the workshop. It was considered essential to prevent undertrials, first timers and casual
prisoners from being influenced, bullied and abused by the few but dominant hard core
criminals in prison. It was observed that juveniles or young offenders, who are housed with
12
Report of the All India Jail Committee, 1980-83
13
Source: The Prison Department, Madhya Pradesh
14
Prisoner’s Rights, including Women’s Rights – A paper presented in the workshop
 15

other hardened criminals, often come out of prison only to commit far more serious crimes
than they had done earlier.

At present, prisoners in Indian jails are classified into different classes not on the basis to
their criminal record but according to their social, economic and educational background.
This, in fact, is a legacy of our colonial past which we have not shed. It is in this connection
that a reference was made in the workshop to the report of Justice Santosh Duggal Committee
appointed by the Lt. Governor of Delhi. This Committee was appointed on the orders of the
Supreme Court in a civil writ petition in which the existing system of classification was
challenged.

The Committee, in its report, mentioned that the existing system of classification, based on
criteria, like social status, education, habit, mode of living etc. was repugnant to the concept
of equality propounded by Article 14 of the Constitution of India and should be abolished.
The broad criteria for segregation of prisoners, according to the Committee, should include
Convicts, Undertrials, Age, Nature of Crime, Previous History (whether habitual or casual),
Prison Term, Kind of Sentences, Nationality, Civil Prisoners, Detenues, Security
Requirements, Disciplinary or Administrative requirements, Correctional Educational or
Medical Needs. The recommendations made by the Committee about classification of
prisoners have been accepted by the Delhi Administration. The workshop felt that these
recommendations merited implementation by prison administrators across the country. The
State Governments should be persuaded to implement the recommendations. The
Commonwealth Human Rights Initiative has already circulated the recommendation to all
States and Union Territories.

Prison Administration

The workshop acknowledged that protection and promotion of human rights in prisons was
linked to the service and working conditions of the prison staff, though it was also stressed
that the poor working conditions could not be regarded as an excuse for violation of
prisoners’ rights.

Prison Staff-Working and Service Conditions

 16

Central to the prison administration is the problem of demoralisation and lack of motivation
of the prison staff that was reiterated by most participants in the workshop, particularly those
belonging to the prison department. It was pointed out that the conditions in which the lower
echelons of the prison staff lived were in some cases worse than those of the prisoners. This
was seen as an important factor contributing to the poor functioning of the prisons, apathy of
the prison staff towards the plight of the prisoners, corruption and the over all deprivation of
the prisoners of their basic amenities. Such substandard conditions of service produce a
culture of frustration and dehumanisation in the service which often spills over and gets
translated into aggression on prisoners. As expressed by members of the prison staff and
acknowledged by other delegates, the conditions of work create an environment that
discourages initiative, leadership qualities and enlightened rights based approach.

Mr. Aivalli, Additional DG Prisons of Jammu and Kashmir pointed out15 that the prison
administration has basically three levels – the management level (DG/IG/DIG etc.); the
supervisory level (the Superintendents/Deputy or Asst Superintendent/ Jailers etc.); and the
grassroots level (Head Warden/Wardens etc.). The officers at management level, majority of
whom are on deputation from the police service, consider this as a punishment posting and
are generally too demoralised to contribute significantly to the building up of the department.
Most of them are merely time servers. The supervisory level, consisting of staff belonging to
the prison service, too is demoralised because of poor service conditions, lack of career
opportunities and low public esteem. At the grassroots level, the department has people who
remain inside the prison walls, interacting with prisoners most of the time. This factor,
combined with their pathetic service conditions, has the effect of dehumanising them. Some
of them develop vested interests and join hands with criminals. Mr. Aivalli suggested drastic
changes in the organisational structure, control and service conditions of the prison
department. The package suggested by him would require (a) having a common cadre for
prison and fire services at grassroots level, with rotational cycle of postings to be effected
after putting them through refresher courses; (b) providing a professional and better
supervisory level by prescribing higher qualifications with better emoluments and status; and
(c) having a judicious and humane management level by having judicial officers at the helm
of affairs and placing the administrative control of the prison department with the State High
Courts. It was felt that the suggestions at (a) and (c) would not be acceptable.

15
Prison Administration – A paper presented by Mr. Veeranna Aivalli, Additional DGP, Prisons and Fire
Services, Government of J&K in the workshop
 17

Mr. Agarwal was of the opinion that the prison administration was not able to recruit and
retain competent people due to its unattractive service conditions and lack of recognition by
the government and the public of the needs of the department. It was suggested by him that
the recommendation to set up an All India Prisons Service made earlier by Dr. W.C.
Reckless, an UN expert, who was invited by the Government of India to study prison
problems in the country (1951-52) and other recommendations contained in the reports of the
All India Jail Manual Committee (1957-58), the Working Group on Prisons (1971-72), the
Mulla Committee (1980-1983) and by the Kapoor Committee (1988) should be implemented
by the Central Government.16

Mr. Agarwal further pointed out that most prisons suffer from severe under staffing. He
indicated the need for other infrastructure related posts, like those of engineers who could aid
in making living and sanitary conditions more comfortable for inmates and thus lessen the
load on the prison staff. He said that support was required from departments like the PWD or
the Health department to ensure the smooth running of prisons. A conscious policy towards
the induction of women in the prison administration is necessary to bring about a gender
balance and sensitivity within the system. This could create a more tolerant culture towards
marginal and weaker sections within prison walls.

The workshop generated some debate regarding the post of convict warders which the new
Prison Bill drafted by the NHRC seeks to abolish. This post is occupied by convicts, who, on
the basis of their good conduct, are given charge of certain duties that would normally have
been undertaken by the warders. This, according to the prison staff, not only works as an
incentive to the prisoner who is entitled to remission of sentence as a holder of the post, but
also helps lessen the work load of the prison staff. The prison department is constantly short
of manpower and the system of appointing convicts as warders does prove helpful in meeting
the shortage of manpower at the grassroots level. This viewpoint expressed mostly by the
prison staff was challenged by others in the workshop. It was pointed out that the system was
being misused and the convict warders were generally working as touts of prison authorities,
misusing their positions to terrorise other prisoners and thus commit gross human rights
violations. Mr. Hira Singh vehemently opposed the retention of the system.

16
Role of Prison Personnel and their Problems – A Paper presented in the workshop by Mr. G.K. Agarwal,
Additional IG (Prisons), MP
 18

Issues of remuneration and promotion opportunities of the prison staff were discussed. The
prison services, especially in the lower ranks, are mostly poorly paid and least glamorous of
all state public services. Very few come into the prison services voluntarily and fewer still
would recommend it to others. The feeling in the ranks was that the government as well as
the public at large was totally apathetic towards them. Prison officers complained that the
only attention they received from the public was negative and their performance was hardly
ever appreciated or encouraged.

The deplorable service conditions are made worse by the near complete absence of vertical
mobility in the department, especially for the lower or middle order ranks. Jail officials are
known to occupy the same post for twenty five to thirty years which is often the cause for
lack of motivation. In a paper17 circulated in the workshop, Justice Awasthy, Member, M.P.
Human Rights Commission made a strong plea for improvement in the remuneration and
promotion prospects for different ranks in the prison department. It was suggested that the
pay-scales of jail-employees should be similar to those sanctioned for equivalent ranks in the
police department. This recommendation had been made earlier by the Kapoor Committee
too.

The posts of Naib-Tahsildars, Sub-Inspectors of Co-operative Societies/Excise Department

and Assistant Jailers are kept at par for selection by the M.P. Public Service Commission.
Though the academic qualifications prescribed for the examination are the same and selection
is done through a common examination, yet the Government in the very beginning
downgrades the posts of the prison department by prescribing lower scales of pay for the
posts of Assistant Jailer. While the pay-scale for other posts is Rs. 1400-2340, the one for
Assistant Jailer is Rs. 1320-2340. Consequently, the prison department figures very low in
the priority of the aspiring candidates. Justice Awasthy also made a plea for improving the
promotion prospects of the people who join at this rank by creating additional posts at the
level of Deputy Jailer.

A presentation on the grievances of the lower supervisory order ranks in the prison
department was made by Mr. V.K. Sharma, Assistant Jailer, Rewa Jail. He pointed out that an
Assistant Jailer is promoted to the post of Deputy Jailer after 20-22 years of service. By that
17
Motivating and Developing Prison Staff; Mr. Justice S Awasthy, Member, MP Human Rights Commission
 19

time, his basic remuneration increases to Rs. 2000, while those in the other services recruited
through the same examination by the State Public Service Commission have had at least two
promotions. Once an Assistant Jailer is promoted to the post of Deputy Jailer he would be, on
an average, 50 years of age. As each promotion requires at least five years experience in a
given post, by the time this requirement is fulfilled, the Deputy Jailer is often close to
retirement age. The problem, according to Mr. Sharma, is that after Independence, unlike
other service like the police, few posts have been added to the prison hierarchy.

The service conditions are worse at the lower rungs. The MP prisons department has a
number of Warders who have not been given any promotion for the last twenty five years. As
a Warder present at the workshop complained, after five years of good conduct, prisoners get
promoted to the level of convict warders and are given incentives like remission, while
Warders after 25 years of service continue to remain where they were.

Training

Expressing serious concern over the extent of dehumanisation amongst prison staff, Mr.
Justice Venkatachaliah underlined the need for periodic counselling and training of prison
staff. There was a general feeling amongst the delegates in the workshop that training of the
prison staff had been completely neglected by the prison department.

Very few States/Union Territories have set up institutions exclusively for the training of
prison staff. A state as large as Madhya Pradesh, with a substantial prison population, does
not have a single training institute for its prison officers. The officials are being sent to
Lucknow for training purposes. Many of the prison staff from Madhya Pradesh present in the
workshop seemed unsure of the nature and scope of training provided even in the Lucknow
training institute, thus indicating their minimal exposure to and awareness of the existence of
training facilities that could be available to them. According to Mr. Aivalli, there was no
specified training institute fir prison staff till last year in Jammu and Kashmir.

According to Mr. Sankar Sen, Director General, (Investigations), NHRC, wherever training is
available, it is in the hands of those members of the police and prisons staff who are found
redundant for active service and are transferred to the training department. Postings in
training institutions are considered a sign of punishment. This is most unfortunate as training,
 20

which is such an important function, is placed in charge of those who have neither the
required aptitude nor the competence for the job thrust on them. All this needs to be changed
and training of prison staff needs to be assigned to those who have the required vision and
understanding of the prison problems.

The workshop suggested that the State Governments should be persuaded to establish training
institutions exclusively for the basic as well as in-service training of the prison staff. It was
felt that human rights needed to be central to all training programmes. The NHRC and the
State Human Rights Commission should ensure that the human rights component is made
central to all prison training modules adopted and implemented by the prison training
institutions.

Accountability

As we have seen in the earlier sections, the deplorable service conditions of the prison staff
and their lack of motivation and self esteem seem to logically extend into a culture that
encourages corruption and malpractices. It was recognised in the workshop that the problem
of corruption in the prison administration was inextricably linked to the violations of human
rights of prisoners.

Besides improving the service and working conditions of the prison staff, what is needed is
the introduction of mechanisms that would ensure an element of transparency and
accountability in the prison administration. The need for accountability was expressed by
several delegates at the workshop. Mr. Kapoor suggested that giving access to media and
civil society via the involvement of non-governmental organisations would be one way of
ensuring higher level of accountability and transparency ion the prison system. Mr. Aivalli
felt that the international and national attention focused on human rights conditions in Jammu
and Kashmir worked as a catalyst to introduce reforms in the state prison conditions.

The paper presented by CHRI places stress on the need to educate prisoners about their
rights.18 Violations in many cases occur because of lack of awareness on the part of prisoners
about what they are entitled to. Educating them about their rights would have the effect of

18
Prisoners’ Rights: Need for Transparency and Accountability – A Paper presented in the workshop by Ms.
Marion Macgregor of the CHRI
 21

empowering them. It was suggested that a Manual, explaining to the prisoners their rights and
obligations, procedure for lodging complaints, the conduct that is expected of jail
administration etc. should be prepared in simple language for prisoners’ benefit. In fact, such
a Manual would benefit the jail administration also by providing them clear guidelines in
important areas of their work. The Manual should be supplemented by the efforts of the
NGOs to do legal literacy work amongst prisoners.

The system of prison visitors could provide an effective mechanism to monitor prison
conditions provided it worked viably. There was a general consensus in the workshop that the
system was not functioning effectively in most places. Either the Boards of Visitors have not
been constituted and at places where they exist, they seldom visit prisoners. The ex-officio
visitors also do not take their responsibility of visiting prisons, ascertaining prisoners’
grievances and providing redress seriously. It was suggested that the visitors should be
chosen from amongst those who have an interest in prisons and knowledge of how they
should be chosen from amongst those who have an interest in prisons and knowledge of how
they should be run. These could be members of the media, social workers, jurists, retired
public servants etc.

Another pre-requisite to ensuring accountability is to establish an effective complaint system

that would encourage prisoners to complain against systemic and other failures within the
prison system without fear of retribution. Once a complaint is made, there should be a quick
and impartial enquiry followed by providing redress if the complaint is found to be true. No
attempt should be made to suppress wrongdoing and anyone found guilty of abusing his
authority must be suitably dealt with. If appropriate disciplinary action is taken, not only does
the prisoner feel that his or her rights have been upheld but it also sends a warning to other
staff that poor conduct will not be tolerated.

The workshop felt that an effective accountability mechanism would benefit not only the
prisoners but also the prison administration. An open system would help the public target
their anger or disappointment at the root of the problem. It would bring the problems out in
the open and the public may realise that in many cases the prison staff may not be responsible
for what ails the prison department. Justice Venkatachaliah expressed the view that opening
the prisons to civil society would be of great help in ensuring transparency and accountability
in the prison administration.
 22

Implementation

It was felt in the workshop that though prison problems had been examined by many expert
Committees and that the Supreme Court and High Courts had on many occasions passed
judgements, indicating inadequacies and deficiencies in different areas of prison work and
administration, a comprehensive programme of reforms was yet to start. The
recommendations contained in the reports and judgements had remained mostly
unimplemented.

An important factor responsible for lack of follow-up action has been the absence of political
will, leading finally to bureaucratic apathy towards the requirements of prison administration.
This apathy is reflected in the scarcity of funds spared by the Governments out of their annual
budgets for prison administration. As was shown in CHRI’s paper presented by Ms. Marian,
the percentage of funds allocated for prison administration out of the budgets of the Union
and State Governments has shown a consistently declining trend, even though there has been
some increase in absolute expenditure on prisons. An opinion was expressed in the workshop
that this lack of political will was due to the fact that the prisoners did not constitute an
important constituency for the politicians, as they have no right to vote. The workshop,
therefore, recommended that the existing laws and arrangements should be reviewed so that
the prisoners could exercise the right to vote, like any other citizen.

The need to evolve a mechanism to ensure follow-up action on the recommendations of the
committees, conferences and workshops and on judgements of courts was also discussed in
the workshop. This would require monitoring and it was felt that the National and State
Human Rights Commissions could play an active and prominent role in monitoring prison
conditions and ensuring action by the concerned authorities to introduce reforms.

The New Prisons Bill

The new Prisons Bill drafted by the NHRC called the Prisons (Administration and Treatment
of Prisoners) Bill, 1998 was brought up for discussion in a paper presented by Ms. Catherine
 23

Pierce of CHRI.19 The Bill was prepared by the NHRC earlier this year in response to calls
for penal reform from various committees and more recently from the Supreme Court.

The existing legislation, the Prison Act of 1894, was formulated when the country was under
the colonial rule. It has been criticised as being an outdated piece of legislation, which was
not in keeping with the modern view of prisons as places of rehabilitation rather than
retribution. In the recent case Ramamurthy v. State of Karnataka (1997) 2 SCC 642, the
Supreme Court stated that “…the century old Indian Prison Act, 1894 needs a thorough look
and is required to be replaced by a new enactment which would take care of the thinking of
Independent India and our constitutional mores and mandate.”

The paper focused on certain key issues, like the efficacy of the supervisory mechanisms,
which the Bill proposes to establish as a means of safeguarding prisoners’ rights. An
important monitoring mechanism is the system of prison visitors. Various courts as well as
the NHRC have severely criticised the working of this system. The new Bill lacks provisions
which would strengthen the system of visitors. Unlike the 1894 Act, the new Bill does not set
out the duties and mandate of prison visitors. If the system is to be effective, the visitors
should be mandated to examine all aspects of prison life and not be restricted to a number of
defined issues, as the new Bill does.

The non-official visitors, according to the Bill, are to be appointed by the Inspector General
of Prisons. After visiting the prisons, they are then required to report back to the Inspector
General. This provision thus marks a retrograde step in terms of ensuring the impartiality and
independence of visitors. There is no scope for external oversight of the prison
administration. It was felt that the National and State Human Rights Commissions should be
given the mandate to appoint visitors who should then report back to the commissions and
also make their report public through the active and effective use of the media.

Delegates at the workshop, including Mr. Sankar Sen and Mr. Aivalli, felt that opening the
prisons to civil society organisations would lead to greater transparency and accountability in
the prison administration. The new Bill must incorporate some provisions to institutionalise
such arrangements.

19
Discussion Paper on the Prisons (Administration and Treatment of Prisoners) Bill, 1998 by Ms. Catherine
Pierce, Researcher, CHRI
 24

The new Bill establishes in Chapter IV the right of the prisoner to appeal to the prison
authorities for any lapse in the provision of basic amenities and facilities, arbitrary
punishment or any other matter considered legitimate. The Bill fails to provide for an
impartial body independent of the prison administration to hear prisoners’ complaints.

Some delegates, particularly those from the prison department, felt that the NHRC should
invite representatives of prison departments from the states to discuss their needs and
concerns. This would help in widening the debate on prison reforms, besides making the new
law reflect the accumulated practical wisdom of persons working in the field.

Recommendations

The workshop made several recommendations which have been stated at different places in
the report. To avoid repetition, we have not reproduced the recommendations from the above
text. However, to provide a bird’s eye view of the ground covered by the workshop, a
summary of the recommendations in a capsule form is provided under different heads:

Overcrowding

• Optimum capacity of prisons needs to be assessed. Central Jails should not

house more than 750 inmates and district jails not mare than 400.
• Certain offences should be decriminalised and alternatives to imprisonment
should be designed to deal with such cases.
• Some more offences should be added to the list of compoundable offences
prescribed in law.
• Unnecessary and indiscriminate arrests should be avoided by police personnel.
• Some Armed Police should be raised exclusively for the Prison department
and kept at their disposal.
• Alternative care homes for non criminal mentally ill persons should be built.

Undertrials and Legal Aid

 25

• An Amendment should be made in the Cr.P.C. to enable an undertrial prisoner

to plead guilty at any stage of the trial.
• Lok Adalats should deal not only with compoundable cases but also with cases
where the accused pleads guilty. The scope of work of Lok Adalats in criminal cases
should be increased.
• The plea bargaining system may be considered for introduction after adopting
necessary safeguards.
• Legal aid workers should make greater use of the judgement of the Supreme
Court in Common Cause v. Union of India (1996) 4 SCC 33 and approach the courts
to get more persons released from jails.
• Legal literacy drives should be launched with the aim not only of sensitising
the prison administration but also of spreading awareness amongst prisoners about
their rights and obligations.
• It is necessary to keep identifying those who need and deserve legal aid. Legal
aid workers must identify such prisoners and educate them about their right to legal
aid.
• Legal aid workers must help in getting the undertrials released on bail and on
personal recognisance.
• Para legal staff should be utilised to work in prisons and provide the required
legal aid to prisoners.
• Legal aid workers must constantly monitor prison conditions and suggest
changes in law to bring about the desired reforms.
 26

Health Care and Medical Facilities

• It is necessary to review the strength of doctors sanctioned for prisons and

ensure the availability of adequate medical facilities for prisoners and prison staff.
• Arrangements must be made to look after the special requirements of women
prisoners. At least one woman medical officer must be available at times to attend to
women prisoners.
• The first medical examination of the prisoner, done at the time of his entry
into the prison, must be thorough. Detailed information about various aliments,
including past medical history, must be collected and faithfully recorded.
• Adequate infrastructural health care facilities, like well equipped ambulances,
stretchers, dispensaries, hospital beds etc. should be made available to the prison
administration.
• Suitable arrangements should be made to provide psychiatric counselling to
those suffering from chronic depression, particularly to women prisoners.
• There should be a clearly defined system of responsibilities of the prison staff
in case of a medical emergency, which should be made known to prisoners through a
chart or pamphlet.
• NGOs’ help should be enlisted in dealing with drug addicts and in establishing
drug de-addiction centres.

Women Prisoners

• Programmes should be implemented to sensitise the prison administration on

gender issues and the special needs of women prisoners.
• Besides special facilities for pregnant women, arrangements should be made
to allow women to go back to their families for post natal care.
• It is necessary to take special care to rehabilitate women prisoners, as it is
harder for them to find acceptance in civil society upon release than men. Thus
women should be specially equipped with vocational skills to empower them on their
return to society.
• Arrangements should be made for women to reside in special homes if they
find it difficult to get accepted in society after release.
 27

Classification of Prisoners

• Classification of prisoners on the lines of education, income tax status or

socio-economic background should be abolished and it should be done on the lines
suggested in the Justice Santosh Duggal Committee Report.

Implementation

• A mechanism should be evolved to monitor and ensure the implementation of

various recommendations made by different expert committees, courts and workshops
from time to time. The NHRC and the State Human Rights Commissions could take
up this work and ensure that follow-up action is taken to implement the
recommendations.
• Existing laws and arrangements should be reviewed so that prisoners could
exercise their right to vote.

Prison Staff

• The recommendations made earlier by many expert groups that there should
be an All India Prison and Correctional Service should be considered by the Central
Government.
• Most prisons suffer from shortage of manpower. The State Governments
should periodically review the requirements of different types of staff required,
including medical, and take steps to remove the shortage.
• There is considerable stagnation amongst different ranks in the prison
department due to lack of promotion opportunities. The governments should carry out
a cadre review and create additional opportunities for promotion for different ranks
based on a work study.
• The posts of convict warders should be abolished and an equivalent number of
regular number of regular posts should be created to meet the requirements of
manpower.
 28

• A conscious policy towards the induction of more women in the prison

administration is necessary to bring about gender balance and sensitivity within the
system.
• The pay-scales of lower ranks in the prison department need to be reviewed.
The State Governments should not downgrade the posts of the prison department by
prescribing lower pay scales for them as compared to the posts of the other
departments, particularly when the recruitment to these posts is done by the State
Public Service Commission on the basis of a combined recruitment test.
• The State Government may consider establishing parity in the pay scales of
lower ranks in the prison department with those in the police department after doing
an analysis of job responsibilities of the selected ranks in the two departments.

Training

• It is necessary to organise periodic training programmes and refresher courses

for all levels in the prison administration.
• All State Governments should establish training institutions exclusively for the
basic as well as in-service training of the prison staff.
• The NHRC and the State Human Rights Commissions should ensure that the
human rights component is made central to all training modules adopted and
implemented by the prison training institutions.
• The training of prison staff must be made the responsibility of those who are
professionally competent and who have the required aptitude to bring about reforms.

Accountability

• A Manual, explaining to the prisoners their rights and obligations, procedure

for lodging complaints, the conduct that is expected of jail administration etc., should
be prepared in simple language for prisoners’ benefit. The Manual should be
supplemented by the efforts of the NGOs to do legal literacy work amongst prisoners.
• The system of visitors should be made viable to function as an effective
monitoring mechanism. The visitors should be chosen from amongst those who have
an interest in prisons and knowledge of how they should be run.
 29

• Appointment of visitors should be done on the advice of the State Human

Rights Commission. The criteria for selection should be made known to the public.
• An effective complaint system should be established which would encourage
the prisoners to lodge complaints without fear of retribution. The complaints should
be enquired into fully and impartially and strict action should be taken against the
persons found guilty. No attempt should be made to suppress wrong doing by any
member of the prison staff.
• Prisons should be opened to civil society organisations as this would help in
ensuring transparency and accountability in the prison administration.

New Prisons Bill

• The new Prisons Bill drafted by the NHRC must incorporate effective
safeguards against violations of prisoners’ rights and establish mechanisms to ensure
accountability of the prison staff for violations.
• The new Bill does not set out the duties and mandate of the prison visitors.
The visitors should be mandated to examine all aspects of prison life and not restricted
to some defined issues, as the new Bill does.
• The National and State Human Rights Commissions should be given the
mandate to appoint prison visitors who should then report back to the Commissions,
heads of the prison department and make their report public through effective use of
mass media.
• The Bills fails to provide for an impartial body independent of the prison
administration to hear prisoners’ complaints. This lacuna should be removed and the
new law must institutionalise arrangements for outside oversight of investigations into
prisoners’ complaints.
• The NHRC should invite a wider public debate on the Bill and also call
representatives from the State Prison Departments to give their views so that the new
law reflects the practical wisdom of persons working in the field.

History and Development of Prisons with Special reference to West

Bengal
(B a se d o n t he re sea rch wo rk do ne by Ja co b P A le i, P o st G rad ua t e (L L M)
S tu de n t ,
 30

Th e WB Na t ion a l Un ive rsit y o f Ju rid ica l S cien ce s, Ca lcu tt a & A kh il Ku ma r,

a stu d en t of Nat io na l L a w Scho o l of I nd ia Un ive rsit y, B an ga lo re )

HISTORICAL BACKDROP
The historical account of jails in our country can be traced back to the Epic age. In Ramayana,

when Bharata saw Rama at Chitrakut, the latter, while making detailed inquiry about the state of

polity and welfare of people of Ayodhya, did not forget to elicit the situation in jail there.

References of jail are also there in the Mahabharata. In those mythological period there were

eighteen important state officials and one of them was the bead of the institution of jail

(karagriha) designated as kamyadhyrrkrkcr". In Manusmriti it is stated that "(the King) should

have all the prisons built on the royal highway, where the suffering and mutilated evil doers can

be seen". There were also horrific punishments like feeding to animals, mutilations etc.We have

locked up people in our country (in dungeons and cellars) to get them out of sight and often to

await some other punishment such as banishing, ostracizing, and death, this includes the locking

up of Krishna's parents in a dungeon in Mathura where Krishna was born. The Archeological

Survey of India has found the jail in which Ajatasatru, confined his father, Bimbisara at Rajgriha,

the capital of Magadha- the modem Bihar). The pre-Buddhist jails were said to be very cruel.

Here, the inmates were, kept in chains and under heavy loads. Whipping was a daily routine in

these jails. Account of Ashoka's Naraka (hell) was included in the writings of Huien Tsang and

Fa-Hien Polished treatment of prisoners was unknown in this period. During Muslim period, old

forts and castles served the purpose of regular prisons. These prisons were not as cruel as the

pre Buddhist prisons.

DEVELOPMENT OF THE PRISON SYSTEM

Until the late 18th century, prisons were used mainly for the confinement of debtors who could

not meet their obligations, of accused persons waiting to be tried, and of convicts who were

waiting for their sentences--either death or banishment--to be put into effect. But imprisonment

gradually came to be accepted not only as a device for holding these persons but also as a means

of punishing convicted criminals. During the 16th century a number of houses of correction were

established in England and on the Continent for the reform of minor offenders. The main

emphasis was on strict discipline and hard labour. The unsanitary conditions and lack of

provisions for the welfare of the inmates in these houses of correction soon produced widespread

agitation for further changes in methods of handling criminals.

Solitary confinement of criminals became an ideal among the rationalist reformers of the 18th

century, who believed that solitude would help the offender to become penitent and that

penitence would result in reformation. This idea was first tried out in the United States, at

Eastern State Penitentiary, which was opened on Cherry Hill in Philadelphia in 1829. Each

prisoner of this institution remained in his cell or its adjoining yard, working alone at trades

such as weaving, carpentry, or shoemaking, and saw no one except the officers of the institution

and an occasional visitor from outside. This method of prison management, known as the

"separate system," became a model for penal institutions constructed in several other U.S. states

and throughout much of Europe.

Meanwhile, a competing philosophy of prison management known as the "silent system" arose.

The main distinguishing feature of this system was that prisoners were allowed to work together

in the daytime. Silence was strictly enforced at all times, however, and at night the prisoners

were confined in individual cells. Vigorous competition between supporters of the silent system
 31

and of the separate system prevailed until about 1850, but by that time the silent system had

been victorious in most U.S. states.

The mark system was developed about 1840 by Captain Alexander Maconochie at Norfolk Island,

an English penal colony located east of Australia. Instead of serving fixed sentences, prisoners

there were required to earn marks or credits proportional to the seriousness of their offenses.

Credits were accumulated through good conduct, hard work, and study, and could be denied or

subtracted for indolence or misbehaviour. When a prisoner obtained the required number of

credits he became eligible for release. The mark system presaged the use of indeterminate

sentences, individualized treatment, and parole. Above all it emphasized training and

performance, rather than solitude, as the chief mechanisms of reformation. Further refinements

in the mark system were developed in the mid-1800s by Sir Walter Crofton, director of Irish

prisons. Irish inmates progressed through three stages of confinement before they were returned

to civilian life. The first portion of the sentence was served in isolation. Then the prisoners were

allowed to associate with other inmates in various kinds of work projects. Finally, for six months

or more before release, the prisoners were transferred to "intermediate prisons," where inmates

were supervised by unarmed guards and given sufficient freedom and responsibility to permit

them to demonstrate their fitness for release. Release was also conditional upon the continued

good conduct of the offender, who could be returned to prison if necessary. Many features of the

Irish system were adopted by reformatories constructed in the United States in the late 19th

century for the treatment of youthful and first offenders. The leaders of the reformatory

movement advocated the classification and segregation of various types of prisoners,

individualized treatment emphasizing vocational training and industrial employment,

indeterminate sentences and rewards for good behaviour, and parole or conditional release. The

reformatory philosophy gradually permeated the entire U.S. prison system. The Irish system and

the American innovations had great impact upon European correctional practices in the 20th

century. There are several justifications for the use of incarceration in the criminal justice

system. It is seen as an effective form of punishment, the threat of which serves as a deterrent

to potential criminals. And by isolating a convicted offender for lengthy periods of time, society

is thereby protected from the crimes he might have committed while free. Moreover, the

controlled environment of a prison offers opportunities for the rehabilitation of criminals through

counseling services, education, vocational training, and so on. These arguments assume that the

isolation of the offender is not outweighed by the possibility of his becoming more criminal while

in prison, and that the social and economic costs of isolating the criminal from the rest of

society are less than those incurred if he had been left free.

PRISONS IN MODERN PERIOD

Jails, in the modem sense, are products of the last century. It is a legacy of British rule. E C

Winese observed that, 'the prison system in Indian Empire, like the British rule itself in that

country, has grown up by degrees, until, as the empire was consolidated and order introduced

into all departments of the Government, the treatment of criminals took its place among the

recognized branches of the judicial administration'. H S Stratchey made a survey of jail

accommodation throughout the territories of the East India Company in 1805. Before 1835, 'there

were 43 civil, 75 criminal and 68 mixed jails' in the territories under the company".

A). Lord McCauley Commission Report, 1835

 32

Till 1836, public attention was not strongly drawn to prisons. The murder of Thomas Richardson,

the Magistrate of 24 Parganas and the Superintendent of the jail, at the Presidency of Calcutta,

was the moving cause of public attention to the jail problem"'. About this incident, E C Wines

wrote, "the murder of the Governor of the most important prison in India was the immediate

moving cause of the broad and exhaustive enquiry which was at once set on foot. The evidence

collected shows that prison discipline had at that time only reached the stage of development in

which considerable attention was given to the physical condition of the inmates of the prisons.

But, not much to the moral relations and agencies. This report was prepared by Lord McCauley,

the then Law Member of the Supreme Council of India.). In this report Lord McCauley expressed

the idea that 'the best criminal code can be of very little use to a community unless there be a

good machinery for the infliction of punishment. This was the ideological cornerstone upon which

the prisons in those days were based. The abolition of outdoor labor, general introduction of

indoor work, the inauguration of separate system, better classification of convicts, careful

separation of untried prisoners, the institution of central or convict prisons, and the regulation

of prison system generally by employment of inspectors of prisons were the main

recommendations of this report.

B). The Prison Discipline Committee, 1836

Lord William Bentick appointed the second committee on Jan 2,1836 under the Chairmanship of H

Shakespeare, a member of Governor General's Council. This committee is known as the Prison

Discipline Committee. They submitted a report in 1838 to Lord Auckland. The major observations

are "the rampant corruption in the establishment, laxity of discipline, and the system of

employing prisoners on extra- mural labor'. The committee recommended increased rigorous

treatment and rejected all notions of reforming criminals through moral and religious teaching,

education or any system of rewards for good conduct". Inter alia it recommended separation of

untried prisoners from the convicted ones. Another notable recommendation of this committee is

the request for establishing the 'office of Inspector General of Prisons'.

First Inspector General of Prisons was appointed in India in 1844, for the then North West

Province. This post was made permanent in 1850. In those days IG (Prisons) were medical

doctors. In 1858 the Royal Proclamation was issued and the responsibility of the administration

was assumed by the British Crown. With the enactment of Indian Penal Code) 1860 (see Ch. II &

III) prisons metamorphosed into the most important instrument of penal administration.

C). Commission of Jail Management and Discipline, 1864

A second committee was appointed in 1864 to reconsider the whole question addressed by the

first committee. Sir John Lawrence's examination of the condition of the jails in India led Lord

Dalhousie to appoint this Commission of Jail Management and Discipline. The British regime was

only interested in the prison from the point of view of administration and discipline. This

commission made specific recommendation regarding the accommodation, improvement in diet,

clothing, bedding, medical care of the prisoners and for the appointment of Medical Officers in

jails. This commission fixed the required minimum space for one prisoner as 54 sq.ft. and 640

cubic ft. The commission also recommended the separation of male prisoners from females and

children from adults.

D). The Calcutta Conference of 1877

 33

A conference of experts was convened in 1877 at Calcutta to inquire into prison administration.

This commission in British India or " conference" as it was called, on prisons and convict

treatment in India was summoned by the imperial government. This committee was constituted

only with officials actually engaged in prison work. Its studies and conclusions extended over the

whole field of prison discipline and administration. One of the major findings of this commission

is that " the various laws relating to prisons have been passed are incomplete, imperfect and

nowhere lay down great leading principles of prison discipline.' The remedy proposed by the

conference of 1877 was the enactment of a new prison law, which could secure uniformity of

system at least on such basic issues as the reckoning of the terms of sentence.

E). The Fourth Jail Commission, 1888

In 1888, the fourth jail commission was appointed by lord DufFerin to inquire into the facts of

prison. This commission reviewed the earlier reports (reports of 1836, 1864, and 1877) and made

an exhaustive inquiry into all matters connected with jail administration. It was of the opinion

that uniformity could not be achieved without enactment of a single Prisons Act". It also

recommended the setting up of j ail hospitals.

F) The Prisons Act, 1894

Based on the 1888 Jail Commission's report, a consolidated prison bill was prepared. This bill

was later passed. Thus came into being the Prisons Act, 1894 which is the existing law governing

the management and administration of prisons in India. This Act, as it is, based on deterrent

principles concerned more with prison management than with the treatment of prisoners and

gave more consideration to prison offences and punishments than to their effect.

G). The Indian Jail Committee 1919-20

The problems of prison management and administration continued. The Indian Jail Committee

1919-20 made the first comprehensive study of these problems in the present century. This

committee report was treated as a turning point of the prison reforms in the country. The

committee departed from the vintage theoretical basis of prison administration-(deterrents) and

advocated for a new outlook to the prisons. For the first time in the history of prisons,

'reformation' and 'rehabilitation' of offenders were identified as the objectives of prison

administration. The committee also recommended the care of criminals should be entrusted to

adequately trained staff, rejected the idea of excessive employment of convict officers and

recommended the reduction of such excessive employment. The committee condemned the

presence of children in jails and recommended the establishment of children's court and the

juvenile homes. Under some pretext or other the recommendations of the Indian jail committee

1919-20 were not implemented. Still they serve as a guiding star for prison reforms in India.

Government of India Act 1919 left the subject of prisons to the consideration and judgments of

of the provincial Governments without any effective control and supervision of the central

Government. As an obvious result, the provincial Government accorded low priority to the prison

reforms. However, the period from 1937 to 1947 was important in the history of Indian prisons
 34

because it aroused public consciousness and general awareness for prison reforms at least in

some progressive states (Mysore, UP, Bombay etc.). The freedom movement also added

momentum to this awareness. The constitution of India, which came into force in 1950, retained

the position of Government of India Act, 1935, in the matter of prisons and kept prisons as a

State subject by including it in List II- Sate List of the Seventh Schedule'" During the early

1950's a number of jail reform committees were appointed by various state governments with the

aim of achieving the goal of humanization in prisons and to put the treatment of offenders on a

scientific footing.

H). Reckless Commission Report, 1952

While local committees were being appointed by the state governments to suggest prison

reforms, the government of India invited technical assistance in this field from the United

Nations. Dr W C Reckless, a UN Expert on correctional work, visited India during the years 1951-

52 to study prison administration in the country and to suggest ways and means of improving it.

His report 'Jail Administration in India" is another landmark in the history of prison reforms. He

made a plea for transforming jails into reformation centers and advocated establishment of new

jails. He opposed the handling of juvenile delinquents by courts, jails, and police meant for

adults. He also advocated the detention of the persons committed to the prison custody and for

their reformation and rehabilitation. The revision of outdated jail manuals and introductions of

legal substitutes for short sentences were recommended by him.

The All India Jails Manual Committee 1957-59

The Government of India appointed the All India Jails Manual Committee to prepare a model

prison manual. The Committee was also asked to examine the problems of prison administration

and to make suggestions for improvements to be adopted uniformly throughout the country. The

report of the All India Jails Manual Committee and the model Prison Manual prepared and

presented by that Committee to the Government of India in the year 1960 are commendable

documents on Prisons. They not only enunciated principles for an efficient management of

prisons but also lay down scientific guidelines for corrective treatment of prisoners. While laying

down the guiding principles for prison management, the committee wrote " the institution should

be a centre of correctional treatment, where major emphasis will be given on the reduction and

reformation of the offender. The impacts of institutional environment and treatment, shall aim at

producing constructive changes in the offender, as would be having profound and lasting effects

on his habits, attitudes, approaches and on his total values of life." The Jail Manual Committee's

major recommendations touched upon the following aspects"

Headquarters organization.
1.
Diversification of institutions based on sex, age, criminal record, security condition, and
2.
treatment.

Architecture and building.

3.
Accommodation.
4.
Constitution of Advisory boards.
5.
Recruitment, selection and training of prison personnel.
6.
 35

Discipline.
7.
Basic facilities.
8.
Daily routine and education of prisoners.
9.

10. V o c a t i o n a l training.

11. A f t e r care and rehabilitation.

12. C a t e g o r i z a t i o n of prisoners (i.e.; UTP, women, life convicts, habitual offenders, lunatics,

juveniles etc.).

All India Committee on Jail Reforms 1980-83

In 1980 Government of India constituted All India Committee on Jail Reforms under the

chairmanship of Justice Anand Narain Mulla. The recommendation of this commission, universally

known as MULLA COMMISSION constitute a landmark in the reformatory approach to prison

reforms. The commission made thorough study of the problems and produced an exhaustive

document.

JAILS IN WEST BENGAL

Dr Mouat, the first IG of Prisons in Bengal (he was a medical doctor), compiled the jail code of

Bengal in 1863-64 under the sanctions of the old Prison's Acts. After the scrutiny of two special

committees the government in 1864 introduced this. The Calcutta Prisons Conference of 1877

also discussed about the situations of jails in Bengals, Tills first jail code was replaced by a more

elaborate jail manual 3 years later. The 1896 edition of this manual lasted for forty years with

nominal changes until replaced by the Bengal Jail Code" Later, certain provisions of the Model

Prison Manual were incorporated in the West Bengal Jail Manual (erstwhile Bengal jail code) while

revising the same in 1967,

THE WEST BENGAL JAIL CODE REVISION COMMITTEE

The West Bengal Jail Code Revision Committee was set up by the state government on August 10,

1977"" The interim report was published in 197X"' This committee considered the problem of over

crowding of prisoners in jails, the treatment of under trial prisoners, betterment of conditions in

jail, prisoners diet, and other similar issues. Among other things, the final report'" addressed

the issues of parole and temporary release, transfer of prisoners, condemned prisoners, prison

Panchayat, criminal and non criminal lunatics, probational offenders, correctional services, right

of prisoners, after care and prepared a syllabus for officers' training college.